Tuesday, July 03, 2012

Greater Baltimore Center for Pregnancy Concerns, Inc. v.
Mayor and City Council of Baltimore

--- F.3d ----, 2012 WL 2402573 (4th Cir.)

Because of the special way in which abortion interacts with
free speech, I’m not inclined to say that this case has any relevance for other
subject matter, but in theory it should, so here you go.

Baltimore enacted an ordinace requiring that “limited-service
pregnancy centers,” such as the Pregnancy Center challenging the law, post
signs disclaiming that they “do[ ] not provide or make referral for abortion or
birth control services.” The district
court granted summary judgment to the Pregnancy Center on its First Amendment
claim, holding that the ordinance unconstitutionally compelled speech that
altered the Center’s communications based, at least in part, on disagreement
with the Center’s viewpoint. The court
of appeals affirmed.

The legislative record indicated that the ordinance was
introduced “after the City Council President had met with abortion rights
advocacy groups, which complained that some pregnancy clinics provide
inaccurate information to women about abortions.” (This is an interesting description of
legislative history, and it gives some force to the dissent’s objections.) The City Council President’s spokesperson
said, “The Bill deals with whether women are told up front what the facts are.
Women need to know up front what to expect when they go into these centers.” Pro-choice
and pro-life groups testified for and against the ordinance.

The Pregnancy Center is covered by the ordinance. It provides services to pregnant women such
as pregnancy testing; classes in prenatal development, post-pregnancy
parenting, and life skills; Bible studies; and diapers, formula, baby and
maternity clothes, toys, and books. It provides information on “abstinence and
natural family planning,” but does not provide referrals “for abortions or
other methods of birth control.” These
services are free, and provided by paid employees and volunteers, each of whom
must sign a statement affirming his or her Christian faith and belief that
abortion is immoral.

After the lawsuit began, the city requested further
discovery, but the district court denied that request and granted the Pregnancy
Center’s motion for summary judgment.

The court of appeals first upheld the district court’s
ruling the church in which the Pregnancy Center was physically located lacked
standing; it suffered no concrete and particularized injury, wasn’t governed by
the ordinance, wasn’t likely to have the sign attributed to it, and was
basically just trying to advance its anti-abortion interests, which isn’t enough
for standing.

The City first argued that the ordinance governed commercial
speech and wasn’t subject to strict scrutiny.
In the alternative, it argued that election and abortion disclosure
cases provided the right model.

The court began by finding that the ordinance compelled
speech, requiring the Pregnancy Center “to participate in the City's effort to
tell pregnant women that abortions are available elsewhere as a morally
acceptable alternative, contrary to the moral and religious beliefs of the Pregnancy
Center.” Compelled speech is
content-based speech regulation subject to strict scrutiny, even when the
disclosure is factually accurate or non-ideological.

So was this commercial speech? The City argued that, though many pregnancy
centers are non-profit, they effectively engage in commerce by offering
pregnancy testing, sonograms, and options counseling, “all of which have
commercial value, garnering payments and fees in the marketplace” (citing Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 573 (1997) (holding
that a nonprofit summer camp was engaged in commerce for purposes of the
dormant Commerce Clause)). The court of appeals disagreed.

The ordinance targeted speech about free services. That alone might not be dispositive, but was
here because there was no indication that the Pregnancy Center was motivated by
any economic interest or was
proposing any commercial transaction.
The ideologically driven speech offered by the Pregnancy Center was
afforded the highest levels of First Amendment protection “even when
accompanied by offers of commercially valuable services.” The city’s definition of commercial speech
was too expansive: “it is difficult to imagine any charitable organization
whose speech would not be considered ‘commercial’ under the City's proposed
broad definition.”

What about the election and abortion cases upholding
disclosure requirements, both lines of which apply less-than-strict
scrutiny? The “differing contexts”
rendered them inapplicable. The abortion
cases “focused on the speech of licensed medical professionals, and the
regulations were upheld because, even though they implicated a physician's right
not to speak, they did so ‘only as part of the practice of medicine, subject to
reasonable licensing and regulation by the State.’” Those regulations facilitated informed
consent. But the Pregnancy Center didn’t
practice medicine, wasn’t staffed by licensed professionals, and didn’t need to
provide informed consent. (My guess is that there are those who’d call this
bootstrapping, though that wouldn’t help this ordinance any.)

So too with campaign finance laws. “The Supreme Court has
never suggested that Buckley's
holding that disclosure requirements do not substantially burden speech applies
to speech regulations more generally.… While disclosure of campaign
contributions or expenditures will always be limited to factual information,
the line between fact and opinion in most compelled speech cases will be much
harder to draw. Thus, campaign finance disclosure laws are less likely to be
impermissibly content- or viewpoint-based and pose a lower risk of altering the
speaker's message.” The ordinance here
burdened the content of speech “generally, requiring pregnancy centers to speak
in a manner that they might otherwise wish to avoid.” The majority, in a footnote, also found that
the ordinance was viewpoint-based because it targeted only pro-life speakers.

Content-based speech regulations are presumptively invalid,
and this one didn’t rebut the presumption. The city argued that it had a
compelling interest in fighting deceptive business practices of certain
pregnancy centers: “deceptive advertising, delaying tactics intended to prevent
women from obtaining abortions, and misleading statements about the medical and
psychological impact of abortion.” It
also argued that it had a compelling interest in protecting the health of
pregnant women and in ensuring that pregnant women who seek abortions have
prompt access to medical services, given that the risks and costs of abortion
increase with delay, and delayed access to birth control can also be harmful.

But the government must identify an “actual problem,” with
more than “anecdote and supposition.”
The record showed “at most, only isolated instances of misconduct by pregnancy
centers generally, and, as the City concedes, none by the Pregnancy Center
itself.” There was no evidence that any
woman had been misled in Baltimore.
Also, the court thought the city was only selectively pursuing its
interest, calling that interest into question. The ordinance didn’t target “the
vast majority of sources that pregnant women would likely consult. Bookstores,
websites, religious leaders, and pregnant women's friends and family—all of
whom might potentially provide a woman with ‘incorrect’ information about her
pregnancy—are unaffected by the ordinance.”
Such underinclusiveness raised doubts about the purported government
interest.

This interest was also undermined by the City’s failure to
do anything else to combat misleading information, such as posting public
notices in City facilities or on City websites.
The City, indeed, refers women to the Pregnancy Center without any
forewarning.
Anyway, even if there were a compelling interest, the ordinance wasn’t narrowly
tailored. The ordinance didn’t limit
itself to deceptive practices/false advertising; it covered all pregnancy
centers even if they don’t advertise.
Also, it overinclusively applied to pregnancy centers whose speech was
entirely truthful. In addition, the City
could use its own resources on public education about the alleged dangers of
pregnancy centers, or urging women to consult with doctors. “The City could also produce a document or
website listing local pregnancy centers and noting what services are available
at each.” And it can prosecute
violations of criminal and civil laws against deceptive advertising.

Additional discovery was unnecessary because the district
court assumed that the ordinance served the compelling interests claimed by the
city and struck it down for want of narrow tailoring, a question of law. Nor was discovery needed to show that
pregnancy centers engage in commercial speech, since the law on its face
regulates noncommercial speech and the individual characteristics of any
pregnancy center are irrelevant. Anyway,
even if some of the speech was commercial, it would be inextricably entertwined
with fully protected speech: “an advertisement offering a pregnant woman the
opportunity to ‘see a picture of your baby’ is both an offer to provide a service—a
sonogram—and a political statement regarding the status of fetal life.”

Judge King dissented, arguing that the district court and
the majority erred in denying discovery to the City while making factual
findings against it, “often premised on nothing more than the court's own
supposition.” The majority went further
by opining on the City’s asserted compelling interests, leaving the case to
follow “a course more fitting a kangaroo court than a court of the United
States.”

In the dissent’s view, the ordinance responded to “congressional
and statewide reports that women were being deceived by limited-service
pregnancy centers.” Congress and NARAL
produced reports “documenting a pattern of deceptive practices by
limited-service pregnancy centers nationwide.”
NARAL identified deceptive practices in Maryland, including in
Baltimore. “During its 2009 hearings,
the City Council heard evidence from a number of women complaining about being
deceived by pregnancy center advertising. One witness related her experience as
a teenager, being subjected to anti-abortion advocacy when she visited a
pregnancy center because it advertised in the telephone book under ‘Abortion
Counseling.’ A college professor referenced ‘countless stories’ from female
students who had similar experiences when they visited pregnancy centers.” (There is of course a substantial concern
about when anecdotes become data. If
only our institutions were consistent on this; but of course they aren’t.)

The City Council heard about delaying tactics used to
prevent women from getting abortions they wanted, such as “counseling women to
undergo pregnancy tests and sonograms that were scheduled weeks after their
initial pregnancy center visit, and misinforming women about abortion services,
including when abortions could be lawfully obtained.” This risked the health of women who
nonetheless chose abortion, since abortions are safest in the first trimester.

When the Pregnancy Center moved for summary judgment, the
City asked for discovery to support the proposition that deceptive advertising
by limited-service pregnancy centers threatened public health and to develop
evidence about the advertising used by the Center and other limited-service
pregnancy centers. It also sought to
develop factual support for its argument that the services were a form of
commerce and therefore the required disclaimer was commercial speech.

Summary judgment should be denied when a party needs a
chance to conduct discovery; this rule was ignored here. The dissent also argued that the district
court and the majority wrongly used an as-applied analysis to rule the
ordinance facially invalid, by not asking whether there were fee-for-service
institutions covered and by focusing on the specific characteristics of the
Pregnancy Center’s ads, services, and ideological beliefs. As-applied challenges are fine, but should be
distinguished from disfavored facial challenges that rest on speculation and
don’t assess all the facts. Given that
the district court used an as-applied analysis, the City should have been
entitled to conduct discovery. And as a
facial challenge, the case deserved discovery even more: even if the Center
wasn’t engaged in commercial transactions, other centers that charged fees
could be.

Thus, there were issues outstanding about whether the speech
covered here was commercial speech. The
ordinance definitely regulated ads referring to a specific service. The question was whether the Pregnancy Center
had any economic interest. “Ironically,
my good colleagues fault the City for not addressing ‘what economic interest
motivates the Pregnancy Center's speech,’ while ratifying the district court's
denial of the City's discovery requests that were aimed at, inter alia,
obtaining such information.” The
district court and the majority shouldn’t simply have accepted the assertion
that the Center’s motives were entirely religious/political.

In any event, the Center might not need an economic motive
to be engaged in commercial speech.
Context matters: an ad presented as an ad for services rather than as an
exchange of ideas can fall into the commercial speech category. (Citing Fargo
Women's Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986) (holding that
false and deceptive ads by a pregnancy center constituted commercial speech
despite provision of free services). Without record evidence of the Center’s ads,
there was no way to assess them.

It was error to conclude that the Center’s ads contained
inextricably intertwined noncommercial and commercial elements without
examining any examples of such ads. The
district court premised its conclusion on the idea that the dialogue between a
center and a pregnant woman begins when she enters the waiting room. “But such a dialogue may actually begin much
earlier, when a prospective client views a limited-service pregnancy center's
advertisements.” Plus, the disclaimer
doesn’t convey a message that abortion and birth control are morally
acceptable; it doesn’t say anything about morals. The disclaimer “relates to the services
offered, not to the religious or ideological beliefs of a pregnancy center.” In any event, when two components of speech
can be easily separated, they aren’t inextricably intertwined. The required disclosure doesn’t specify
language or terminology, and “a limited-service pregnancy center would be free
to express its disapproval alongside the disclaimer, or otherwise qualify its
viewpoint vis-à-vis the disclaimer.”
More to the point, nothing in the ordinance bars the pregnancy center
from conveying noncommercial messages.

In addition, the dissent was uncertain that the ordinance
didn’t implicate professional speech. “I
am simply unable to understand how the majority can make such factual findings.
In truth, there may be licensed professionals who are subject to the Ordinance.
Indeed, [amici, other pregnancy centers] assert that some of its affiliates ‘operate
under the licensure of a physician-medical director [and] provide medical
services ... by certified and licensed professionals,’ and that “there are 750
such clinics nationwide, including [the Center].’ Therefore, discovery
concerning the possible professional nature of the regulated speech is also
warranted.”

Another reason discovery was needed was to bolster the
record supporting the ordinance. This
was no made-up post-enactment justification; there was a substantial
pre-enactment record, though the majority deemed it insufficient to establish a
compelling interest. “But criticizing
the record as somehow lacking merely begs the real question underlying the
errors of the district court: Why was the City denied a full and fair
opportunity to conduct discovery and present a proper record?” When a record is limited, the government is
generally permitted to marshal relevant evidence, as in the Turner Broadcasting cases.

The district court also erred in finding the ordinance not
viewpoint neutral. The majority said
that the ordinance burdened only “pro-life speakers,” but that’s not true. Lamaze instructors, doulas, pregnancy
shelters that choose not to make referrals to avoid any liability stemming from
the fact that they don’t have licensed or trained professionals to address
those subjects, and adoption/surrogacy centers are covered by the
ordinance. The majority suggested that
the legislative history demonstrated animus against the Center’s
viewpoint. But, as the majority noted,
the City has referred and continues to refer women to the Center, which speaks
against animus. “In any event, the record validates the City's uncontradicted
contention that the Ordinance was enacted to curtail deceptive advertising, not
because the City disagreed with or wanted to suppress the Center's speech.”

The majority disparaged the City’s asserted compelling
interest in protecting the public against deceptive practices and ensuring
prompt access to birth control and abortion for those who seek them. The majority argued that the ordinance was
underinclusive because it didn’t regulate every possible source of information. “The City, however, had an obligation to deal
with existing public health problems, without addressing the likelihood of
deception from every possible source of information available to pregnant
women.” The City could, the majority
suggested, have put a notice on its own website, but that was a critique of the
means of serving compelling interests, not a valid argument that the interests
were not compelling.

In any event, the majority focused on the first compelling
interest and basically ignored the second, timely information and medical care. The City provided a declaration from a public
health expert attesting to the relevance of disclosure to this interest, and
the district court never mentioned it, though this alone at least created a
genuine issue of material fact on the compelling interest.

The ordinance was minimally burdensome (which led the
majority to condemn it as underinclusive).
The preferred remedy for false or misleading advertising is more
disclosure, not less. Going further in
specifying what pregnancy centers could say risked constitutional problems of
its own.

The dissent also criticized the district court’s comparison
of the ordinance to a regulation requiring a non-American car dealership to
post a sign that says “We do not offer cars built in the United States.” This would be impermissible, the court
suggested, because it would “handicap[]” dealers who didn’t want their
customers to think about that issue. (Of
course, federal law actually does require origin labeling for non-US goods, as
do many state laws, and I sincerely hope the district court didn’t really mean
to throw the constitutionality of those statutes into doubt, especially since
they plainly do regulate commercial speech.)
The district court suggested that, likewise, the ordinance would harm
the Center because when a woman “comes in and [the Center] says we don't offer
abortions” the woman thinks, “Oh, abortions, yeah, I guess I better ask about
that.” The dissent remarked that
“[c]omparing a woman's right to seek lawful medical treatment to a
salesperson's economic interest in keeping his customers ignorant is, as the
court initially thought before it made the comparison anyway, ‘a stupid
example.’”

The majority didn’t like that the ordinance applied to all
pregnancy centers, regardless of whether there’d been a specific finding of
deception as to each. “But the Ordinance
applies equally to all limited-service pregnancy centers, due to the inherent
potential for consumer confusion and deception concerning the services
provided.”

Turning to the City’s alternatives, such as distributing
information of its own, the City had never been offered a meaningful chance to
show that this less restrictive alternative wouldn’t work. “The Center did not, until it replied
concerning its own summary judgment request, propose any less restrictive
alternatives. Thereafter, the district court denied the City its right to
conduct discovery and awarded summary judgment to the Center. In so doing, the
court suggested other less restrictive alternatives. Of course, the City has
argued—in both the district court and on appeal—that these alternatives would
be ineffectual or less effective. Importantly, however, the City has never had
a chance to adduce evidence with respect to those alternatives.”

At least, there was a genuine dispute on narrow
tailoring. A disclosure is a less
restrictive alternative to more comprehensive regulations, and the First
Amendment interests implicated by disclosure are weaker than those implicated
by actual suppression of speech. “ Public education campaigns and websites may
be successful to some degree, but they do not ensure that every woman who
visits a limited-service pregnancy center will be apprised of the services
offered there, at a time when such information is most needed. Inadequate or
unenforceable deceptive advertising statutes, problems of proof, and scarcity
of resources can also impact efforts to prosecute limited-service pregnancy
centers.” A less restrictive alternative
must be as effective as the regulation in order to count as an alternative.

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